Northway Nursing Home

DI)('ISI()NS OF( NATIIONA. I.ABOR RL.AT'IONS BOARI) Carrawav Geriatric Centers, Inc. d/h/a Northway Nursing Home and Hotel and Restaurant Employ- ees and Bartenders Union, Local 886, AFL-CIO. Case 10 CA 13633 July 18. 1979 DECISION AND ORDER BY ICHAIRMAN :ANNIN( ANI) M MIE RS JI NKINS ANI) MURPIY On January 15, 1979, Administrative law Judge Norman Zankel issued the attached Decision in this proceeding. Thereafter Respondent filed exceptions and a supporting brief'. Pursuant to the provisions of' Section 3(b) of the National Labor Relations Act, as amended, the Na- tional abor Relations Board had delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief' and has decided to affirm the rulings, findings' and I Respondent has ecepted tol certain credibility indings made bhs the Ad- minislrative Law Judge. It is the Bard's established polilcy not to o'errule an admini'tra li'e law judge's resolutions with respect to credibility unless the clear preponderance of all f the relevant ev idence cons nces us that the resolutions are incorrect. Standard Dn 1t/all Prdlu, 1. In . 91 N Rb 544 (1950}. enfd. 188 F.2d 362 (3d ('ir. 19511 We have carefully examined the record and find no basis ir reversing his findings. The Administrative Law Judge in discrediting Irihhble found a major in- consistency as to when Glodt interviewed 'Tribble as a further indication o a lack of credibility on Tribble's part. The record, however. does not support a finding that the testimony is necessarily inconsistent or contradictory. Since the credibility finding on Tribble also was based on her deameanor, evasive- ness. and exact duplication of Armstrong's testimony, the apparent error h the Administrative Law Judge concerning the inconsistent or contradiclory testimony does not affect the result. One further credibility issue also deserves comment. (;ills allegedly was discharged lor threatening picket line violence The Administrative l.aw Judge credited Gills' and employee Lee's version of the alleged threat. (ills and ee testified that employee Brooks was nearhb when the conversation occurred and could possibly have overheard it Respondent's witnesses, Armstrong and ribble, whom the Administrative l.aw Judge discredited for numerous reasons. but specifically for demeanor. denied Brooks was present. Brotxks was not called as a witness. Respondent, in contending that the Administrative I.aw Judge should have drawn an adverse inlirence from the General ('ounsel's failure to call Brtoks. insists it did not call Brooks be- cause it did not know of her alleged presence at the incident until the hearing began In rejecting Respondent's contention, the Adninistratie l.aw Judge concluded that since neither party offered to explain Brooks' bsence it would be speculative to conclude Brooks was in the cntrol of the General Counsel. Respondent excepts to the Administrative law Judge's failure to draw an adverse inference. With regard to Respondent's contentention, a Iw ohbservations appear war- ranted. If Respondent considered Brt)iks' testimonly necessary or important. it could have called Broo)ks even if it meant asking for a pstponement. Moreover. i Brooks had been called and testified to the version of the inci- dent most lIavorable t Respondent (which would he the result if drasing the inference). would this nol. i fact. further discredit Respondent's it- nesses who insisted Brooks was not present'? It ially. we are constrained to note that the rea son Resplondent did nt know about BHrooks' alleged pres- ence is because in "investigating" the incident it did not find it necessary to obtain the versions of Lee or Gills The failure to iobtain their versions. In fact. is one of the reasons we find (;ills' discharge was pretextual in nature. Had Respondent obtained both sides of the story. t presumably would have learned of Brotks' presence from (;ills and Lee and could have called conclusions of the Administrative i.aw Judge and to adopt his recommended Order. ORD)tR Pursuant to Section IO(c) of the National L.abor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative l aw Judge and hereby or- ders that the Respondent. ('arrawav (;eriatric Centers. Inc. d/b/a Northway Nursing Home, Bir- mingham. Alabama, its officers, agents, successors, and assigns, shall take the action set Itrth in the said recommended Order. iBrooks is witnless. [ ur this reason. it seeni prticil.rl tlltlLgrtlUs lit Resplondent. n olne hand. It cnlend it had no knowledget I Brok' pres- ence and yet Insisl that the adverse inlerence he dra. n. Nonetheless. even if we were Itl draw the requested inlerence. hlch in light of the abose we find unnecessary) I do. we wiould still find the alleged threat amiounted to nothing molre than prestrike rhetoric which Respondent seized upon as li pretext to discha;rge (;ills, ; uiniln achlisl, and thereby warn the employ ees it did nt look l'awra bly uptpn the Unio n or the p .sslbil- it) o1 a strike. Thus. as found hb the Adniiiustrral, e l.aw Judge, I ribhhle brought up the subject of a strike, which had heen rumored rom Sepembniher to I)ecemher (bargaining began i June) In ddiltun. I rlhbbhic and Armi- strong apparently considered the incident so nsignificantl that the cxtlent o1 Iheir conversatitn on the subject. lthough the rde hmnie toIgether, as I rlhle's comment shorll alter the incident tht "I' think ,,e'vse hecn threatc enied," to which Armstrong replied, "' thinLk s" Neither rihhble nr Arm- strong considered the incident significanl enough to ntulit Respondent. Railher. Iribble's aunt cnitacted Respondent alter Iribble mentioned the incident to her MoNreover. on cross-esalmination I rihle and Armlstromn acknowledge that (;ills explicilly stated that she ould not be the one to calrr out the alleged threa;t inlly, ot pralmounlt significance is the tact that Respondent. in the course ol "investigating" the alleged threat, did not even find it necessary to obtain (ills' and I .ee's versions of the incident Since (;ills was ahout to lose her job, it oultId appea;r onl, lair in attemlpting to determine the truth. i. i1t act, that :ere the purpose ot the invsligatinm. that Responident vitld at least have sked (;ills and tee for their sversions ot the incident hefore taking such drastic action D)L('ISI()N St I I l Il ( i tiI1 ( AStl NiIRMAN ZANK:I Adtnllistrative I.aw Judge: l'his case was heard bef'ore mcin ()October 25 1978. ailt Birmingham. Alabama. Upon ;a charge filed on Mayi 2. 1978. b Holtel and Res- tauranl tnmplotees and Bartenders Union. laocal 886, AFL ('10 (hereinafter the Ulnion) a complaint Issued on May 25. 1978, by the Acting Regional l)irector for Region 10 of' the National abor Relations Board hereinafter the Board) against ('arraway (ieriatric ('enters Inc. d/b/a Northway Nursing Home (hereinafter the Respondent). In essence. the complaint alleges that Respondent dis- criminated against employees in violation of Section 8(a) I) and (3) of the National abhor Relations Act as amended (nereinafter the Act), by discharging its ciplot , cc letia (ills. 'he Respondent iled a timel ansuer to the comnplainlt, admitting certain allegations. hilt deitn ig the substanlivce allegations that it committed an, unfair lahbor practice. 243 NlRB No. 98 544 NORTHWAY NURSING HOME All issues were fully litigated at the hearing: all parties were represented by counsel and were aflforded full oppor- tunity to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argu- ment. Post-hearing briefis have been received from the Board's counsel for the General Counsel and from Respon- dent's counsel.' Those briefs have been considered care- fully. Upon the entire record. and from my observation of the witnesses2 and their demeanor in the witness chair, and upon substantial, reliable evidence "considered along with the consistency and inherent prohbabhility of testimony" ('niversal (lamera C(orp. . .I.R... 340 .S. 474. 496 I1951)). I make the lollowing: FINDIN(;S ANt) CoN(T I SINS I. lit IPI ()Y R'S BUSINSS Respondent. an Alabama corporation ith an office and place of business in Birmingham. Alabama. is engaged in the operation of a nursing home for the elderly. During the calendar year immediately preceding issuance of the com- plaint. a representative period, Respondent provided non- profit nursing home services from which it received gross revenue in excess of $100.000. of which 75 percent was re- ceised from Medicaid. Based upon the foregoing. I conclude that the Respon- dent satisfies the Board's jurisdictional standards (see I nl- vervit Nursing Home. nc.. 168 NI.RB 263. 264 (1967)) and it will effectuate the purposes of the Act to assert jurisdic- tion herein. Respondent admits, the record reflects. and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I1I. Ilil lAB()R OR(,A\IZ.AIt)tN IN) t it) The parties agree, the record reflects, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. itt. it Al t G(iEi) NtAIR I AB(OR RA( ('S A. (rcedibilitv Credibility of the respective witnesses is the crucial issue herein and determines whether the General Counsel's or Respondent's version of the facts should be adopted. The ultimate choice in making my findings of fact is based upon my observation of the demeanor of the witnesses, the IOn November 28. 1978 (10 days after briefs were due). I receised a supplemental brief from counsel for the General Counsel N prior request to file such a brief had been made The supplemental brief for the first time requests that any backpay found to be due herein be awarded at the interest rate of 9 percent. I consider the supplemental brief to have been late-filed Accordingly. its contents hase been given no substantive consideration In any event, I see no reason to depart from the Board's recent pronouncement regarding interest payments made in Florda Stel (rporautn. 231 NI.RB 651 (1977). 2 Upon Respondent's motion. which I granted. all emploee witnesses were sequestered weight of the respective evidence provided b them. estab- lished or admitted facts, and inherent probabilities and rea- sonahle inferences which may be drawn from the record as a whole. Northridge AKnittig Mills. Inc.. 223 NLRB 230 (1976): Warren L. Rose Castings, Inc. d/ha 'l I & 1f (ast- ings, 231 N LRB 912 (1977): see also Goll Sltantdrd Enter- prises. Inc., 234 NLRB 618 11978X). Moreover. I have weighed all the testimony carefully, bearing in mind the tendency of witnesses in general to testitfy as to their impressions or interpretations of what was said rather than attempting to give verbatim accounts: and also that even the person testitfing about his own remarks may well tend to elucidate or express what he said or in- tended to say in language more explicit or clear than he used in the actual speech or discussion. The various testimony presented herein is replete with instances of witnesses for each litigant providing testilony in direct opposition to that presented bh those of opposing litigants. I shall discuss only those conflicts of testimony which are relevant. On the other hand. I have neither g- nored all such testimony nor the arguments of counsel. In the credibility contest between the witnesses presented bh the General Counsel and those on behalf of Respondent. a fair assessment of the testimony presented b each per- suades me that the versions presented by the General C(oun- sel's witnesses are most reliable. In this regard. I alt not unmindful of the conflicting evidence pertaining to the pre- cise locations of the employee participanits to the conxersa- tion during which Giills is supposed to have issued the threat fo)r which Respondent discharged her. I find it un- necessary to resol,, e this conflict because precisely where each stood is irrelevant to the issue of whether or ot the threat actuaill was made. Moreover, there exist substantial other means. described below b which to test and resolve the veracity of the respective witnesses. I attribute the dif- tferences among the witnesses who testified where each of the participants in the discussion stood or sat to their per- sonal predilections nd individual differences in powers of observation. Thus. I give such testimony little probative value. More important is the demeanor, inherent consis- tency. and probability of the sum of their testimony. The General Counsel presented two employee witnesses. Thus. Gills and former employee Herbert I.ee testified. Each impressed me as forthright and candid. Viewed in- dividually, each testified in a spontaneous and direct man- ner. As will be demonstrated below. their testimony is con- sistent, inherently probable. and logical. Neither oft' them attempted to embellish his or her narration of events. Gills and Lee had no patent relationship to each other. On the other hand, Respondent witnesses Bridgette L. Tribble and Ora L. Armstrong drove together to and from work. I note that there are minor variations between Gills' and Lee's recitation of what was said during the conversation where Gills is supposed to have threatened employee Tribble. However. as a whole I find the testimony of Gills and Lee substantially mutually corroborative. The variations reflect normal differences in individual perception. In contrast. Tribble and employee witness Armstrong and witness James Glodt (Respondent's Administrator) appeared re- hearsed beyond mere coincidence. For example. Respon- dent sought to show that employees had been warned by Respondent that it wouhl not tolerate threats by striking 545 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees to nonstrikers. To prove this. Glodt testified that, at a meeting of employees conducted in November 19771 "we (Respondent) would not tolerate" such threats. When asked to recall whether or not employees had been warned about threats, both Tribble and Armstrong testified in hec verha that Glodt advised the employees that the employer "would no tolerate" any threats. This consistency might be considered mere coincidence. However, I do not pass this matter off in such a perfunctory manner. As noted. Tribble and Armstrong rode to work together. All but three of Respondent's employees had voted in favor of union rep- resentation. Armstrong and Tribble did not strike, and each freely admitted they were not favorably disposed toward the Union. Each was instrumental in providing information to Glodt upon which he based Gills' discharge. In these circumstances, and those to be described below. I consider this duplication of testimony a factor detracting from their credibility. In general, I found Tribble haughty. inconsistent, and self-contradictory: Armstrong nervous, hesitant, inconsis- tent, and self-contradictory: and Glodt inherently inconsis- tent and implausible in critical areas. The specific issues upon which I base these conclusions follows. Tribbble was self-contradictory. An example is her narra- tion of the first thing that occurred during the confrontation between her and Gills. Tribble, during direct examination. insisted that Gills came into the nursing home and immedi- ately was "talking loudly." I)uring her cross-examination, however, when asked to repeat the sequence of events. Tribble testified (;ills came into the employer's premises "mumbling" something about a strike. Next, Tribble demonstrated evasiveness and an attempt to obscure all the relevant facts. When recounting the al- leged threat, Tribble, on direct examination, omitted to state she heard Gills say that she would not be the one to implement the alleged threat. However, during cross-exani- nation. ribble admitted that Gills said "she would not be the one to do it. She (Gills) said that she would not be the one to give the beatings, etcetera, but they had people for that." I consider that Tribble's omission to present the en- tire discussion between her and Gills during her direct ex- amination reflects adversely upon Tribble's credibility. Ad- ditionally, Tribble ascribed the phrase "et cetera'" to Gills. I conclude those Latin words, in fact, belong to Tribble, not Gills. I carefully observed and listened to all witnesses. Also. I have analyzed the testimony as it appears in the transcript. The composite of those tasks makes it clear that Gills' vocabulary and manner of speaking does not reason- ably suggest the use of such phrases by Gills. The use of that Latin phrase is more reasonably attributed to Tribble. I consider Tribble's account of this matter as an attempt on her part to distort the facts. I find Tribble's description of what occurred after the alleged threat was made by Gills improbable. Iribble testi- fied that she was "real upset" and "scared." Armstrong. who drove home with Gills immediately after the alleged threat was issued, testified the two of' them were in transit fbr as much as 10 minutes. However. Armstrong testified that not one word regarding the alleged threat was said by 'All dates hereinalter are In 1977, unless olher'lsc indicatcd either of them. Indeed, Armstrong testified the alleged threat was mentioned but briefly. Thus, she said that as Tribble and she walked out of the employer's premises. Tribble commented "I think we've been threatened," to which Armstrong replied "I think so." It stretches credulity to imagine that. after having been told by Goldt the Re- spondent "would not tolerate'' any threats, there would not have been further discussion between Armstrong and Tribble. Similarly, it is not unreasonable to expect that one as distraught as Tribble claimed to have been would not have manifested her emotions in a more vigorous and vocal manner. Further reason to discount Tribble's characteriza- tion of the event is the fact that it was her aunt (with whom Tribble resided), not Tribble. who suggested reporting the incident to Respondent. Perhaps the most glaring instance of what I consider to be Tribble's studied effort to present her testimony in a light most favorable to Respondent is the inconsistency between her and Glodt regarding when it was that she personally appeared before Glodt to describe the alleged threat. Thus. Tribble testified that she did lol wvork for the 2 dtai'. imme- diately succeeding the allged threat. Both Tribble and Gilodt testified that Tribble had an in-person interview with Gilodt to report the incident. During the interview, Tribble provided Glodt with a written statement of her version of what had occurred.' 'ribble testified that because she was not scheduled to work on the 2 dass immediately succeed- ing the alleged threat, the interview with Glodt was con- ducted on the third day after (ecember 9). Glodt, how- ever, testified that he interviewed Tribble on the dav ioltclilatev llowing tlhe ( a/leged i ibdent. As noted, parts of Tribhle's 'ritten statement provsided Respondent were read into the record. hut the document itself is not included. There is no indlication swhether or not Irihhble's written statement had been daled. hus, the record is left with the contraldictory verslons of' Irihhle and Glodt. In my view. those :. ri;ations inipair the rliablils of ''ribhle and (;lodt. I find Armslrong inherently iplausible in her testimony that she andl Iribble commented to one another that they' believed the , had been threatened. As with Tribble if Gills actually threatened them (or they believed so), it is not rea- sonable to believ the he two o them did not further discuss the situation dllring their drive home. Also, Lee and Gills testified that the conversation in which the alleged threat wais nmade began hb (iills' invitation to I.ee to attend a scheduled union meeting on the following day. No chal- lenge has been made to G(ills' testimony in which she told Lee that she could not attend the union meeting because of a death in her family. It is logical that L.ee expressed his sympathy to Gills. as he testified. Armstrong however, ada- mantly denied that Lee said n'tihing at any time during the conversation. In all the circumstances. I conclude this is iniplausible and adversely affects her credibility. With regard to Glodt, I have already noted the inconsis- tency between his and Tribble's ersions as to the date Tribble reported the alleged threat. Additionally, I find his account of the basis for G(ills' termination spurious. Glodt testified, consistent with, and supported by. his self-serving ' I hl slalcmecni was marked a (.( [xh. 5 I hc General (ounsel nter- rogatled (;Iod con crning Iis conltents, but did notl ofler the document Into, es dence 546 NOR IW\ A' NI: RSIN(, I O()M termination letter to (ills. that he conducted an "investiga- tion" ot the alleged threat. and it ,as this "investigation" that formed the basis of the termination. Mere superficial analysis of the totalit of e idence belies the contenliion that the alleged threat was the sole cause or the disciplinary action. Thus. the written statements provided b Armstrong and Tribble to (ilodt reflect that (iills explicitly told them it would not be she who would implement the alleged threat. That language alone, if given a lair evaluation, vitiates whatever threatening impact Gills' other remarks might have contained. Indeed. Tribble's statement possesses a broader disavowal. agreeing with G(ills' oral testionotn that she said none of Respondent's employees would implement the alleged threat. Yet another reason exists for discounting (ilodt's testi- mony, in general, and his explanation of the reason for ter- mination, in particular. The extent of the so-called "investi- gation" is extremely shallow. When questioned from the bench, Glodt said he attempted to communicate with Lee. whom, Glodt knew was a participant in the conversation between Tribble and Gills. Glodt testified that he tele- phoned Lee at home. hut received no response. Ihis was the total extent of his effort in that connection. (;lodt testi- fied that he made no effort to determine whether or not lee might have been at work. Finally, if it were concluded that Tribble gave her written statement to Glodt on the day following the alleged threat. that statement would have been in Glodt's possession on December 7. It was then that the investigation apparentl1 was complete. This was before Glodt orally informed Gills that she was suspended "pending the investigation." In this context, the 2-day hiatus between the suspension and termi- nation is unexplained. If, on the other hand. Tribble's testi- mony that she gave the written statement to Glodt on IDe- cember 9 is credited. then that statement would have been given him on December 9. This would be more consistent with the date which appears on Gills' termination letter. but would not excuse the inference, which I make from Glodt's failure to make a coniplete investigation, that he was satis- fied with the presentations made by Tribble and Arm- strong clearly two employees whose anti-union sentiments could not have avoided his attention. Thus. I consider Glodt's actions to have been baseless in the circumstances and a revelation of his anxiety to trap a known vigorous union proponent. Several other factors bearing on credibility are notewor- thy. With regard to Tribble, I find the record contains yet another example of evasiveness. During her direct testi- mony, Tribble said that when Gills made the alleged threat. she (Gills) pointed her finger at Tribble. During cross-ex- amination. Tribble said she was "ash.ohatel. sure" that (iills did this. When confronted with her pretrial affidavit. Tribble acknowledged that she told the Board's investigator that she was uncertain whether Gills pointed her finger. Tribble attributed this variation to having been nervous during the interview in which she gave the affidavit to the Board's investigating agent. I reject this explanation as un- characteristic of Tribble's overall demeanor when testifying before me. Afterwards, she was self-assured. Thus, her ex- planation fails. Instead, I attribute her professed testimonial certainty to her general desire to distort her testimony in an unfavorable way against Gills In m assessment of the :ilness' credlhilit I have placed little significance on the testimons of I ribble and Armstrong to the effect that the (ills-ribble conversation w:as proloked I, Gills' h;laing irst commented that there would be a strike on D)ecember 15. Gills denied that she made such a; reference and also that she even kncv such a date was contemplated for a strike. I credit G(ills. In makin this determination, I have considered the contents of dcu- ments received in e, idence ater the close of the heariIng. I note that the December 5 letter does not constitute an olfi- cial notice that a strike sould ensue on )December 15. Next. there s nol direct c'idence that G(ills actuall' knev that the letter had been dispatched. The actual strike vote. , hich resulted in sending the I)ecember 19 oflicial notice to strike. was taken on )ecember Is. In this posture and in iev, of, G(ills' denial and rnm overall credibility resolutions, I col- sider the letters of little probative alue. Finall, in resolsing credibility. I am not unmindful that ernployee Brooks did not testift. Both Gills and I.ce testi- fied that Brooks wvas present during the Gills-lribble en- counter. Tribble and Armstrong denied that Brooks ,.as present. Respondent urges these circumstalnces permit an adverse inference against the General (ounsel's cause for his failure t produce Brooks at the hearing. I disagree. In appropriate circumstances. such inferences are permissible. Intcrviallt (Circuit, Ic. v. l lilted SItates, 306 U.S. )08 ( 1939): ),1onahwtl F)rd Corporation o!/ Flu.shimg, 173 NLRB 204 (1968). -lowever. it must be demonstrated that the absent witness was in the control of the party against whom the inference is to be made. 2 Wigmore. Evivdence §286(a). Hlerein no party offered to present an explanation for Brooks' absence. In these circumstances, it would he specu- lative to conclude that Brooks was within the control of the General ('ounsel. c\ccordingls I find no proper predicate to make the requested inlerence. B. 1 I/acrie As noted. the comnplaint alleges Gills' termination on De- cember 9 as discrilinatror r in violation of Section 8(a)1(3 of the Act. The facts set forth below are a composite of the credited testimon and undisputed facts. The Union won a Board-conducted representation elec- tion and Wias certified as the collective-bargaining repre- sentative of Respondent's employees on June 6. Collective- bargaining negotiations ensued. No contract was reached by September. Rumors of a strike then began and appar- ently became quite prevalent into December. Actuall,. in September. the bargaining unit emplosees voted to autho- rize a strike, but no date was arranged. On December 5. ' After the hearing closed. Respondenl's counsel submitted an "unorpposed motion to supplemen the record" to add lettlers dated )ecember 5 and 19 from t nion Representative Race to Respondent I cnsider hls motuin as a motion to reopen the record or the limited stated purpose he mo tion is herebh granted because witnesses during the hearing ere exlmined con- cerning the suhject matter of the letters, hut the documents were not thin asallable More, ser. I conclude the record reflects the parties' ntention to hase offered these documents n es idence at the hearing had the' been avail- able Internilonol Birtherhoi ol Elctril tl H orAers Fl. L. 1/0. Irocl J64 F;ithdilEir call('orpiratiton) 1 82 NlRB 66. 9 (1970) 1 have marked the motion and each oI the ehiits (Resp l-xhs. 4. 5. and 6. respectivelv . and have made themn a part oI the official transcript q47 I)I!('ISIONS O() NAII()NAI. LABOR Rl.AI IONS BO()AR) Race wrote the employer that unless agreement were reached on a collective-bargaining agreement by December 16. "the Union will take whatever steps open to it, includ- ing a work stoppage."b On December 6. the disputed 'I ribble-Gills consersation took place. The credited testimony reflects that the conver- sation occurred at approximately 10:50 p.m. at the so- called hack nurses station. Gills, who was scheduled to be- gin her work shift at I p.m.. was talking to L.ee. A union meeting was scheduled to be held December 7. G(ills re- minded Lee of the meeting. She asked him to attend. G(ills told Lee she personally could not attend because she had to go to a funeral of a family member. While Gills and Lee were talking (in the presence of em- ployees Armstrong and Brooks) Tribble approached. Tribble commented to the effect that the employees did not have a union because it had not yet done anything for them. Tribble observed they had not paid any dues and said "therefore, we didn't have a union." Gills said the employ- ees did have a union, but they were still bargaining. Tribble then declared that she would not strike and "would walk over the picket line." (iills responded "I wouldn't advise you to walk over the picket line because there may he some- thing or someone to stop you." Gills added that no em- ployee of Respondent would perpetrate such an event. G(ills further discussed the efficac of the Union. stating "It's or poor Blacks and Whites. It will help us all." That ended the conversation. and Tribble left the premises with Armstrong. (Tribble's version of the conversation is substantially dil- lerent. 7 Tribble testified that she was standing at the back station at approximately 10:40 p.m., )ecember 6. Lee and Armstrong were in the vicinity. Gills entered the premises "talking loudly something about a strike." (Gills, still talk- ing, punched her timecard and approached the back sta- tion. Tribble then testified that (Gills looked at her and an- nounced a strike was scheduled to begin on December 15. According to Tribble. GCills then said if Tribble tried to cross the picket line "they would" "beat my a-s and put me on the side of the road." Tribble testified that Gills was pointing her finger at Tribble while speaking. Tribble testi- fied she Responded "If they did that, they had better have somebody to get them out of jail." Tribble testified Gills replied "We have people for that. too. We mean business." Tribble acknowledged that Cills told her she was making her comments for her own welfare. Additionally, as noted herein, during her cross-examination. Tribble admitted Gills explicitly disavowed that it was not she nor any other employee of Respondent who might carry out the alleged threat.) As Tribble and Armstrong walked out of the facility. Tribble said (as already noted) "I think we've been threat- ened." to which Armstrong responded, "I think so." Tribble 'This letter was not sent pursuant to Sec. 8(g) of the Act, Hence, as previously stated I do not consider It an official or formal strike notice. (Compare the December 5 and 15 letters.) I As indicated. I do not accept Tribble's account. It is set forth herein to clarify and explain the discussion of credibility. section III. A. supru. I Armstrong's version also specified vulgar language was used by Gills. I consider this reference another example of uncanny duplication of testimony between Armstrong and Tribble. aid Armstrong then drove home without further reerence to the alleged threat. According to l'ribble and lodt, sometime near mid- night. ecember 6. ribble's aunt telephoned (lodt to ad- vise him of the alleged threat. As already noted. I ribble vwas equivocal on this issue. She testified. also. that she was not sure whether she telephoned (ilodt that night. At best. whether or not the incident was reported to (ilodt that night is uncertain. What is certain is that on the next day. I)ecember 7. Armstrong had an in-person discussio ni with (ilodt and gave him her written account of the alleged threat. (As already indicated. it is not clear whether or not Fribble also was interviewed by (ilodt thai day). On December 8. when (ills appeared at Respondent's premises to begin her usual I I p.m. shill. (ilodt and Re- spondent's Director Estes met her at the timeclock. Gilodt told her to leave the premises. lie said he learned that she threatened some employees. G(lodt told (Gills she was sus- pended until he further investigated. (I he nature of the "in- vestigation" already has been discussed). On December 9, (lodt wrote Giills she was terminated effective that date because he had "completed (Resptmn- dent's) . . . investigation of' the threats . . . (ills) . .. . made to the employees . . . and concluded that . . . (ills) . . . made threats of hodils harm or serious injury to the em- ployees of this facility if they did not participate in a strike being called by the Union." On December IS the union membership voted to strike. The Union forwarded a strike notice. pursuant to) Section 8(g) of the Act. to Respondent. The strike began on l)ecem- her 29. Gills, at all times material herein, was an active union proponent and served on the I:nion's bargaining commit- lee. ('. Dnimlitoi The issue before me is to determine. from the totalit of evidence, whether the asserted reason for (;ills' termination actually is the one 'hich motivated it. Signal Delilvr Ser- ice. nc . 226 N LRB 843 1976). I find that Respondent had knowledge of Gills' union sympathies and activity by virtue of her having participated in face-to-Iace collective-bargaining negotiations with Re- spondent's representative. With regard to motivation, Respondent argues that the record is devoid of evidence of its union animus. It is true the General Counsel presented no direct evidence of prec- edent improprieties by the Respondent. The complaint al- leges no independent acts of interference, restraint. or coer- cion which might be violative of Section 8(a)(I ) of the Act. However, the Supreme Court has noted: "Specific evidence of intent to encourage or discourage (union activity) is not an indispensable element of proof of violation of Section 8(a)(3)." Radio Offi(er.v' Union /' the Conmmercial Telegra- phers Union, A FL/A. H. Bull Steatmxship C(ompan v. N.L. R. B.. 347 U.S. 17. 44 (1954). The Ninth Circuit Court of Appeals observed that in 8(a)(3) cases: . . .the trier of fact mav inler motive from the total circumstances proved. Otherwise no person accused of 548 N()RI WA'.\Y N RSIN( H()ME unlawflul motive who took the stand and testified to a lawful moti e could be brought to book . .. If he finds that the stated motive for a discharge s false, he cer- tainly can infer that there is another motime. More than that, he can infer that the motive is one that the employer desires to conceal an unlawful motive at least where, as in this case, the surrounding facts tend to reinforce that inference. Shattuck Dnn ,WIitng ('orporation (Iron King Branch) . N. L. R B.. 362 F.2d 466. 470 (9th Cir. 1966).9 See also Heath International. Inc.. 196 NLRB 318 1 972). The total circumstances present here give rise to an inter- ence that G(ills' termination was motivated. at least in part. b a desire to discourage union activity. A discharge is un- lawful if it is only partially motivated by discriminators animus. Florida Medical Center, hIn. d/h/ a Lallierdal- Lakes General o.spital, 227 NLRB 1412. 1414 (1977): N. L. R.B. v. Dant, et ail. 207 F.2d 165. 167 (9th Cir. 1953]. conclude that Glodt's "investigation" was wholly unilateral. lie made no serious effort to elicit the facts from all known participants to the G;ills-Tribble conversation. It is even doubtful that the investigation was initiated by a report from Tribble or her aunt. Tribble's aunt did not appear as a witness. This situation presents a stronger circumstance far making an adverse inference against Respondent than e- ists for making an adverse inference against the General Counsel. because Brooks did not testif'. It is fair to pre- sume that since Tribble resides with her aunt, there is some element of "control" over her. Despite this. I make no ad- verse inference from the failure of Tribble's aunt to testif. Nonetheless. I take note that her failure to testify com- pounds the tenuous nature of Respondent's defense. In short. I discredit the defense because the record fails to show that Respondent gave anything but perfunctory atten- tion to the alleged threat. Accordingly. I conclude that the asserted reason fr Gills' termination is a subterfuge to dis- guise Respondent's unlawful motivation. As indicated, I consider the words which Gills testified (in a straightforward manner) that she used to be ambigu- ous and comprise legitimate pre-strike rhetoric among em- ployees.' 0 Assuming. arguendo. that Gills' words actually constitute an unlawful threat. I find that there exists suffti- cient evidence to demonstrate the issuance of such a threat is but a factor entering in Respondent's determination to terminate her. It is well established that even if a partial reason for a discharge is one proscribed by the Act. a viola- tion must be found. N.L.R.B. v. 7ml Wood Pontiac,. 1i(.. 9The Shattuck Denn principle was expressl adopted by the Board n Atlantic Metal Products. Inc. 161 NLRB 919. 922 (1966) 'oSee Hickors Springs Manufacturing Co(mpaun. 239 NLRB 641 (19781. where, in the context of a preelection campaign. similar remarks ere found insufficient to set aside representation election resul:s In so holding. the Board commented "we have found .. no cases . . which hold that a union's preelection threat of possible physical violence in the event emplo- ees cross a picket line at some future remote time constilutes conduct pro- scribed by . .. the Act." The instant case is not as strong as HtcrA ,n Springs because. herein, there has been no evidence that G(ills as an agent ol the Union. Although Gills' remarks were uttered in a strike coniet less remote than present in H,n Springs, Gills' lack of agenc. coupled ith her disclaimer that anyone connected with the instant employer would commni violent acts, remove any coerci e impact 447 F.2d 383 (7th (lr. 1971 ): Dcllne .4sltlcirinl Sertt cl. nc1( 222 NI.RB 462 (1976). Upon the filregoing. I find that the General ( ounsel has sustained his burden of proof that (ills was terminated bh Respondent on December 9 for discritmtinator rea:sons in violation of Section 8(a)(3) and (I) of' the Act. ;s alleged. UIpon the basis of the aboe findings off lact and upon the entire record in the case. I make the fillowing: ('i(N l t Sl(t) s ()I l.aS 1. Respondent is an employer engaged in commrlerce within the meaning of Section 2(2). (6). and (7) of1 the ct. 2. The [Union is a labor organization within the meaning of Section 2(5) of the Act. 3. B terminating its employ ec. letta (iills, on D)ecem- her 9 1977. Respondent discriminated against emniplo, ees in violation of' Section 8(a(3) and ( 1) of the Act. 4. The aresaid unfiair labor practices aflect crnilcrce within the meaning of Section 2(6) and (7] o' the Act. T R ) Having fund that b the abhove-described conduct Re- spondent iolated Section 8(a)3) and ( ) of the Act. I shall recommend it cease and desist from engaging in such con- duct i the future and affirmativels take such action as ill dissipate the effects of its unfair labor practice. The Order shall require Respondent to offer letta (ills full and immediate reinstatement to her former or substan- tially equivalent job. without prejudice to her semnorit or other rights and privileges. and to make her whole for an! loss of earnings she mas have suffered as a result o' the discrimination b pay ment ofa sum equal to that hich she would have earned, minus the discrimination. to the date of Respondent's offer of reinstatement. The hackpa, and in- terest thereon shall he computed in accordance ith the Board's established standards contained in I'. It /- o rth ( ompactc, 9(0 N LRB 289 (195()). nd fortda Steel ('orporlziott, 231 NIRB 651 1977)1} Discriminator) terminti ns of emploees go to the ery heart of the Act and indicate a purpose to thwart the em- ployees' statutory rights. he instant unfair labor practices committed b\ Respondent potentiall\ are related t other unfair labor practices proscribed by the Act, and the danger of its commission in the future is to be anticipated fromn Respondent's conduct in the past. The preventive purposes of the Act will he thwarted unless the recommended Order herein is coextensive \with the threat. Accordingl-,. to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act. the Order herein shall require Respondent to cease and desist from in an other manner infringing upon the rights of emploees guaranteed in the Act. .L R.B. . Fpres Puhli.hlng C(ompavln. 312 U.S. 426 (1941) .. L.R.B. . Entwitctle o.. (.. 120 F.2d 532 (4th Cir. 1941 ): Pan .4 ne1riian Elterntcittinltg Co., Iti.. 206 NI.RB 298. n. I (1973). Upon the above findings of fact. conclusions of law. the entire record in the case. and pursuant to Section 10c} of' the Act. I herehb issue the fllowing recommnended: n See. generall. I Plumh,,,i, g Htltn, g (Co. 138 NI.RH 71h (19'62 I) I('ISI()NS () NAFI()NAI. I.ABOR RI.I.AIIONS BOARI) ORI)-R' The Respondent. ('arraway (Geriatric ('enters. Inc. d/h/a Northway Nursing ome. its officers. agents. successors, and assigns. shall: I. ('ease and desist rom: (a) Discriminating against its employees for engaging in union activity. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights might he affected by a lawful union-security agree- ment in accord with Section 8(a)(3) of the Act. 2. Take the lollowing affirmative action which will elffec- tuate the policies of the Act: (a) Offer Fletta (Gills immediate and full reinstatement to her former job, or it' that position no longer exists, to a substantially equivalent position of employmenl, without prejudice to her seniority or other rights and privileges: and make her whole for any loss of' pay or other benefits suf- fered by reason of Respondent's conduct found unlawful in the manner described ahove in the section entitled "I'he Remedy . (b) Preserve and. upon request. make availahle to to the Board or its agents. fi'r examination and copying. all pay- roll records. social security payment records, timecards. personnel records and reports. and all other records neces- sary to analyze the amount of' hackpay and interest due under the terms of this Order. (c) Post at its Birmingham. Alabama facility, copies of the attached notice marked "Appendix."' Copies of' the no- tice, on forms provided by the Regional Director for Re- gion 10, after heing duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof and be maintained for 60 consecutive days thereafter. in conspicuous places. including all places 1: In the event no excepions are filed, as provided bh Sec. 10246 of the Rules and Regulations of' the National abor Relations Board. the finding,. conclusions, and recommended Order herein shall, as provided n Sec 10248 of the Rules and Regulatitns. be adopted by the Board and become t, findings. conclusions, and Order, and all objections shall be deemed waived for all purposes. " In the event that this Order is enforced by a Judgment o a nited States (ourt of Appeals, the words n the notice reading "Posted by Order of the National I.ah)r Relations Board shall read "Posted Pursuant to a Judg- ment of the United States (Court of Appeals Enforcing .an Order of the Na- tional Labor Relations Board where notices to employees customaril? are posted. Reatson- able steps shall he taken hy Respondent to insure that the notices are not altered. delaced, or covered bh any oher m;aterial. (d) Nofity the Regional l)irecto for Regioln 10. in writ- ing. within 20 daNs from the date of this ()rder what steps Respondent has taken to comply herewith. A I'PPN DI X Nillt ( I IMI'I t('t I1S P)SII I) iY ORDIR ilI 1111 NAII()NAI. L.AitOR R I A i()NS BIARI) An Agency of the linited States (ioveFrnillent After a hearing in which all parties had the opporlunit to present their eidence, it had been decided we hrolke the law in certain waNs. We have heen ordered to post tllis notice. We intend to carr oult the rder of the Board and ahide h the following: The National I.ahor Rel;ltions Act gives empliyees the following rights: 'lo engage ill self-orgalltlaion 'Io foril. join, or assist any uLio111(n 'Io hbargain collectisely Ihrough reprcseLtaties whom thes themselves select To engage in acti.ities together bot purposes of' collective bhargaining or to act together in order to seek improvemenl in their wa;ges. hours, working conditions and other terms nd contllditions of' em- plo yment To refrain from ;ln alnd all such activities. \'1 \\11 ii sl discrilinalte a;gainst ;al of' our el- plosees hecause thcy engage inl union activities. WI \iit oflcr I letta Gills immediate and full rein- statement t her tfnrmer jobh with us. without loss of' senot it or other rights andl henefits or. ift' that job no longer exists. then wI \\ lt I offer her employment to a substantial l? equivalent position: and wi \'wit make her whole. with interest. ibr all loss of pay and other henefits she suffered as a result of our termination of her emploment with s oit l)ecemher 6. 1977. WI- wI I N, illn a' other manner. interfere with. restrain. or coerce any of' our employees hecause they engage in any of the protected activities described at the top of' this notice. CARRAVAY (jRsIAIRI( (' N t:RS, I . D)/B/A NO)RIII'\AY NtSIN(; I}(IMI 550i